Asif @ Shabbu vs State
2014 Latest Caselaw 2742 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

                                           Reserved on     : 25th March, 2014
%                                          Date of Decision: 28th May, 2014

+                CRIMINAL APPEAL NO. 615/2011


ASIF @ SHABBU                                             ..... Appellant
                                  Through     Mr. R.S. Dakha and Mr. Jagjit
                                  Singh, Advocates.
                                  versus
STATE                                                     ..... Respondent

                                  Through     Mr. RajatKatyal, APP with
                                  Inspector Manoj Pant, SHO Gandhi Nagar.


                 CRIMINAL APPEAL NO.688/2011

NADEEM @ CHICKNA                                         ..... Appellant
                                  Through    Mr. Gurbaksh Singh and Ms.
                                  RichaSamhita, Advocates.

                                  versus
STATE                                                     ..... Respondent
                                  Through     Mr. RajatKatyal, APP with
                                  Inspector Manoj Pant, SHO Gandhi Nagar.

CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE G.P. MITTAL

SANJIV KHANNA, J:

The impugned judgment dated 31st March, 2011 convicts Asif

@ Shabbu and Nadeem @ Chikna under Section 302 read with Section

34 of the Indian Penal Code, 1860(IPC, for short) and Section 392

read with Section 397/34 IPC.

2. By order on sentence dated 6th April, 2011, the two appellants

have been sentenced to undergo life imprisonment and fine of

Rs.1,000/- for the offence punishable under Section 302/34 IPC. In

default of payment of fine, the two appellants have to suffer simple

imprisonment for two months. For the offence punishable under

Section 392 read with Section 397/34 IPC, the two appellants have

been sentenced to rigorous imprisonment for 7 years and fine of

Rs.500/-, in default of which, they have to undergo simple

imprisonment for one month. Benefit of Section 428, Code of

Criminal Procedure, 1973 (Cr.P.C.) has been granted and the sentences

are/were to run concurrently.

3. The aforesaid conviction arises out of FIR No.306/2009, police

station Gandhi Nagar and relates to murder of Abdullah and robbery by

two boys at 9.45 p.m. on 13th December, 2009 at old police picket, near

Tikona Park, Shastri Park.

4. On the question of occurrence and involvement of the

appellants, the prosecution primarily relies upon testimony of Inamul

Haque (PW-1), who has deposed that the deceased was his cousin

(maternal uncle‟s son) and had come to Delhi 10-15 days prior to the

incident. On 13th December, 2009, PW-1 along with Abdullah was

going from the shop of their brother in Gandhi Nagar towards their

house at Shastri Park. Abdullah was talking on his mobile phone and

was 10-15 steps behind PW-1. When both of them had reached the

crossing near Tikona Park, PW-1 suddenly heard shrieks and saw two

boys stabbing Abdullah. One boy was also searching pockets of

Abdullah‟s pant. PW-1 went towards Abdullah to save him, but took

to heels when the two boys adopted an aggressive stance and came

towards him. PW-1 deemed it appropriate to run from the spot and

make a call at number 100 and to his brother Shanul Haque. PW-1

crossed the railway bridge and came back to the place of occurrence

after he noticed that the two boys could not be seen. Thereupon, he

made 2-3 calls at number 100. Shanul Haque reached the spot. They

saw Abdullah lying on the road unconscious and smeared with blood.

They took Abdullah to Singhal Nursing Home, nearby Kailash Nagar,

where he was given first aid but were asked to take him to a

Government hospital. They took Abdullah to LNJP Hospital, where

after examination, he was declared brought dead by the doctors.

Inamul Haque‟s (PW-1) statement, Ex.PW1/A, was recorded by the

police and became the „rukka‟ resulting in registration of FIR

No.306/2009, at police station Gandhi Nagar. The FIR was marked

Ex.PW6/A. PW-1 has also deposed that Abdulla‟s mobile phone of

LG make with Reliance SIM bearing number 9311123100 was missing

and the same was probably taken away/stolen by the said boys ( the

said phone and SIM have not been recovered).

5. PW-1 identified the two appellants as the two boys, who had

accosted Abdullah, robbed and stabbed him. The core question and

issue is whether we should believe the said identification by PW-1 in

the Court. We are inclined to accept the said identification by PW-1

for the reasons set out below.

6. Evidence of identity can relate to identification of persons or

objects. Identity of the culprit frequently becomes a vexed subject

matter of trial in criminal cases, except where the accused is previously

known to the eye witness or is apprehended or available at the spot. In

other cases, the police relies upon identification by the eye witness

after the suspects are apprehended. Investigation invariably begins on

leads and lines probalising the suspects. Confirmation follows and

may include the witness being taken to a particular neigbourhood or a

place or being shown multiple suspects, to see if the witness can

identify the person who had committed the crime. Sometimes

photograph or image of persons who could be involved may be shown

but this has its drawbacks and limitations as physical appearance or

identification tends to be more accurate and foolproof. Video

identification possibly has several advantages but in India has

not been the preferred mode. Emphasis is sometimes made on the

description given by the witness and drawing or photofit compilations

prepared, but there is psychological research which concludes that the

description given by the witnesses are a great deal more unreliable than

acts of identification [see Cross on Evidence, 7th Edition at page 719,

which refers to Devlin Committee report on the said aspect. The said

author also refers to other psychological literature/search (refer

decision of the High Court of Australia in Alexender Vs. R (1981) 34

ALR 289)].

7. Test identification parades properly conducted are generally

accepted to be the most satisfactory method for identifying a suspect,

especially, when they are conducted impartially. However, these are

also not free from difficulty and instances of wrong or mistaken

identification are not unknown. This can happen when the actual

perpetrator is not included in the line up, as this significantly heightens

the risk of incorrect identification. The risk can be minimized by

informing the witness that the actual perpetrator may not be present in

the line up.

8. In all cases when the Court acts on visual identification, it

should rule out the possibility of a mistaken identity before accepting

identification by a witness. Quality of identification depends upon

the witness and for this reason, is case specific or unique. Visual

identifications are admissible, but the weight and whether and to what

extent the said identification should be accepted would hinge on

several factors like; the amount of time the witness had to observe the

suspect, a fleeting glance as opposed to few minutes is less likely to be

accepted; the distance between witness and suspect also matters and is

relevant; obstructions and difficulties in observation and the general

conditions prevailing can affect identification; peculiarity stated by the

witness relating to physical attributes of the suspect may

reinforce/affirm identification; time lapse also affects identification. A

longer time gap may affect the probative value attached to the

witness‟s statement. As time passes, forgetting curves of the eye

witness‟s memory makes the identification increasingly susceptible to

contamination. Identification, where the eye witness clearly saw the

face along with ethnicity, general body type etc., will make the

identification more reliable.

9. Police upon investigation had charge sheeted the two appellants

as well as one Nadeem s/o Qasim as the third person, as involved in the

said crime. In addition, it was claimed that a fourth offender, one

Nafees was involved, but could not be arrested. However, PW-1 in

clear and categorical terms and in spite of cross-examination by

Additional Public Prosecutor, refused to accept that Nadeem s/o Qasim

was involved and present at the time and place of occurrence. In view

of PW1‟stestimony, Nadeem s/o Qasim has been acquitted by the trial

court. The State has not preferred an appeal against the said acquittal.

PW-1 in the cross-examination has stated that the incident took place

and was over within one or two minutes and the distance between him

and Abdullah, when he went to save him, was about 4-5 steps. In fact,

he had made a call at number 100 when the two appellants were

chasing him. He had also shouted for help, but no one came forward.

Subsequently, he made a call to his brother from the bridge.

Thereupon, his brother Shanul Haque came and they took Abdullah to

Singhal Nursing Home and then to LNJP Hospital. It is quite apparent

that PW-1 is a credible and truthful witness, who did not shy away and

refused to accept that there were more than two assailants as put to him

by the Additional Public Prosecutor as well as counsel for the appellant

Nadeem @ Chikna. He did not support the prosecution case to this

extent and this factum is an indication and pointer towards his

credibility and reliability. PW1 identified that Nadeem @ Chikna was

holding a knife having a blade almost 2 to 3 inches broad and the

appellant Asif was also holding a knife like object. He had seen the

appellants stabbing Abdullah, who was screaming for help. In the

cross-examination, PW-1 accepted that he had been called to the police

station for identification of the two perpetrators and he had identified

the two appellants in the room of the SHO. There was another person

accompanying the two appellants, namely, Nadeem s/o Qasim. He

volunteered that a number of persons were shown to him in the police

station and this was probably after 4-5 days of the occurrence. PW-1

denied the suggestion that he had identified the culprits because they

were shown to him by the police. PW-1 has also deposed that he had

gone for Test Identification Proceedings (TIP), but the appellants

refused to participate and the TIP could not be held.

10. The reason why we do not doubt presence of PW-1 at the spot

is the narration of facts by him. Secondly, we have statement of

Shanul Haque (PW-4), who had received the phone call from PW-1 on

13th December, 2009 at about 9.30-40 p.m. and had proceeded towards

the railway bridge near Shastri Park. Shanul Haque (PW-4) has

deposed that they found Abdullah lying on the footpath in an

unconscious condition. There were cut marks on his abdomen and he

was bleeding profusely. They took Abdullah first to Singhal Nursing

Home, but were asked to take him to a government hospital.

Therefore, they hired an auto and took Abdullah to LNJP Hospital,

where he was declared brought dead. PW-4 had identified the dead

body of Abdullah, which after post mortem was handed over to him

vide memo Ex.PW4/A.

11. It is noticeable that MLC of Abdullah Ex.PW11/A refers to the

name of the injured/patient as Abdullah, his parentage, residence etc.

and it was stated that the patient was brought by Shanul Haque (PW-4)

son of Mohd Yasin. The said MLC was prepared on 13th December,

2009 at 10.20 p.m. and also records that it was alleged that the patient

had suffered physical assault at Kailash Nagar, Mother Dairy, Delhi as

told by the person, who had brought the patient. Dr. Arvind Mohan

(PW-11) had proved the said MLC, which was in the handwriting of

Dr. Subodh, who was working as a Junior Resident in the Department

of Accident Emergency. The said doctor had left the service and his

whereabouts were not known. PW-11 identified the handwriting and

signatures of Dr. Subodh. The MLC describes the injuries as

dangerous and refers to the wounds. The details of the injuries

suffered have been stated in the post mortem report Ex.PW10/A, which

was proved by Dr. Amit Sharma (PW-10). The said witness has stated

that he had conducted the post mortem and on examination had noticed

the following injuries:-

"1. Stab wounds single edge 2.2 cm × 0.8 cm horizontally place over left front of chest 3.5 cm from midline and 5.5 cm blow and medial to

the left nipple. The track of the wounds extends up wards, back wards and medially to reach up to lower border of fourth ribs over left side with a total depth of wound was 5 cm. Effusion of the blood present all along the route of tract.

2. Incised wound 2 cm × 0.6 cm × 0.1 cm, obliquely places over front of abdomen in midline 0.5 cm below the umbilicus and having evidence of tailing at the lower end.

3. Stab wounds single edges 2.1 cm × 0.6 cm, obliquely places over left front of abdomen with its lower and merging with the umbilicus. The tract of wounds extends downwards, backwards and from left to right, piercing the abdominal wall anteriorly entering into peritoneal cavity piercing through anti mesenteric side of jejunum at two sides and tearing the root of messentry.

4. Stab wounds single edge 2 cm × 0.7 cm, present over back of right side of abdomen 6 cm from midline and 10 cm above and posterior to right posterior superior iliac spine. The track of wound extends downwards, forwards and medially piercing the posterior abdominal wall, entering the peritoneal cavity and reached up to right border of L2 vertebra."

12. On internal examination, about 50 ML of fluid and clotted blood

in the left pleural cavity and about 1.5 litre of fluid and clotted blood in

the peritoneal cavity were found to be present. PW-10 opined that

death was due to haemorrhage and shock consequent to stab injury on

the abdomen, i.e. injury No.3 quoted above, which was sufficient in

ordinary course of nature to cause death. All injuries were ante

mortem and fresh, caused by a single sharp edged weapon.

13. On the question of identification of the appellants in the Court

by Inamul Haque (PW-1), whose presence we feel cannot be doubted

at the place of occurrence/crime, the position in law appears to be

clear. Failure to hold test identification parade does not make evidence

of identification at the trial in Court inadmissible. However, on the

question of probative value and the weight to be attached to such

identification, there are authorities that that it would be prudent to hold

test identification parade when the witness did not know the accused

before the occurrence.

14. In Dana Yadav alias Dahu and Ors. v. State of Bihar, (2002) 7

SCC 295 after referring to the case law on the subject, it was observed

that identification of an accused in the Court by a witness was

substantive evidence, whereas identification in the test identification

parade, though a primary evidence, was not substantive, the same

could be only used to corroborate. The reason being that test

identification parades held during the course of investigation, aid and

assist the investigating agency in catching the culprit, be it by

identification of the property or the perpetrator. It assures that the

investigation was correct. Thus, failure to hold test identification

parade does not make identification in the Court inadmissible, but

identification of an accused by a witness for the first time in the Court

being inherently of weak character should not form the basis of

conviction. Yet there could be cases when identification in the Court

for the first time, even without corroboration by previous identification

in the test identification parade or any other evidence, could form the

basis of conviction. This aspect was earlier highlighted by the

Supreme Court in Vaikuntam Chandrappa and Ors. Vs. State of

Andhra Pradesh AIR 1960 SC 1340 wherein it was observed that

purpose of test identification parade is to test the evidence given in the

Court and is a safe rule, which ensured truthfulness of the sworn

testimony of the witness in the Court, where the witness and accused

were strangers. In such circumstances i.e. when accused and witness

were strangers, there should be corroboration in form of earlier

identification proceedings or any other evidence.

15. The expression "any other evidence" is wide enough and gives

discretion to the Court to accept the dock identification when there is

no doubt in the mind of the Court regarding involvement of the

accused upon deposition/identification in the Court for the first time.

This could be because the witness concerned may have easily seen

faces of the persons assaulting him or a third person and their

appearance or the identity had remained imprinted. The Supreme

Court has laid great emphasis on the dock identification [see Sidhartha

Vashisht @ Manu Sharma Vs. State (NCT of Delhi)(2010)6SCC 1

and Deepak @ Wireless Vs. State of Maharashtra(2012)8SCC 785].

16. Recently, in Ashok [email protected] Debbarma Vs. State

of Tripura, 2014(3) SCALE 344, it has been observed:-

"16. ..................The whole object behind the Test Identification Parade is really to find whether or not the suspect is the real offender. In Kanta Prashad v. Delhi Administration : AIR 1958 SC 350, this Court stated that the failure to hold the Test Identification Parade does not make the evidence of identification at the trial inadmissible. However, the weight to be attached to such identification would be for the Court to decide and it is prudent to hold the Test Identification Parade with respect to witnesses, who did not know the accused before the occurrence. Reference may also be made to the judgment of this Court in Harbhajan Singh v. State of Jammu and Kashmir : (1975) 4 SCC 480, Jadunath Singh and Anr. v. State of UP : (1970) 3 SCC 518 andGeorge and Ors. v. State of Kerala and Anr. : (1998) 4 SCC

605.

17. Above-mentioned decisions would indicate that while the evidence of identification of an accused at a trial is admissible as substantive piece of evidence, would depend on the facts of a given case as to whether or not such a piece of evidence can be relied upon as the sole basis of conviction of an accused. In Malkhansingh v. State of M.P. : (2003) 5 SCC 746, this Court clarified that the Test Identification Parade is not a substantive piece of evidence and to hold the Test Identification Parade is not even the rule of law, but a rule of prudence so that the identification of the accused inside the Court room at the trial, can be safely relied upon. We are of the view that if the witnesses are trustworthy and reliable, the mere fact that no Test Identification Parade was conducted, itself, would not be a reason for discarding the evidence of those witnesses.

This Court in Dana Yadav alias Dahu (supra) has examined the points on the law at great length and held that the evidence of identification of an accused in Court by a witness is substantive evidence, whereas identification in Test Identification Parade is, though a primary evidence, but not substantive one and the same can be used only to corroborate the identification of the accused by witness in the Court. So far as the present case is concerned, PW10 and PW13 have identified the accused in open Court which is the substantive piece of evidence and such identification by the eye- witnesses has not been shaken or contradicted. The trial Court examined in detail the oral evidence tendered by those witnesses, which was accepted by the High Court and we find no error in the appreciation of the evidence tendered by those witnesses."

17. One of the reasons why dock identifications are considered to be

suspicious and inherently unfair is that the witness is more likely to

identify the person facing prosecution as the one he saw committing

offence because he believes him to have committed the offence. PW 1

has admirably and as a truthful witness steered clear from the said

accusation by making selective and considered identification of the two

appellants herein. He did not identify Nadeem S/o Qasim. The two

appellants noticeably had refused to participate in the TIP proceedings

marked Ex.PW12/A and 12/B, respectively. The said TIP proceedings

were proved by Mr. V.K. Gautam (PW-12).

18. We would now examine other evidence and material implicating

the appellants. Inspector Narender Singh Minhas (PW-18) was working

as SHO, police station Gandhi Nagar on 13th December, 2009 and had

received information about stabbing incident at Mother Dairy, Kailash

Nagar and thereupon reached the spot and came to know that the injured

had been taken to the hospital. Leaving some police officers at the spot,

he left for the hospital and procured MLC of Abdullah and learnt that he

had died. In the hospital PW18 met Inamul Haque (PW-1), the eye

witness and recorded his statement Ex.PW1/A. PW-18 came back to the

spot and evidence in the form of blood soaked earth, earth control etc.

was seized. On 17th December, 2009, PW-18 constituted two teams and

received information from Head Constable Rishi Pal of the second team

that the two culprits, involved in the present case, were present at Shastri

Park SharabTheka. At the instance of the informer, they apprehended the

appellants Asif and Nadeem s/o Qasim (who has been acquitted), on 17th

December, 2009 at about 5-6 p.m. vide arrest memos Ex.PW8/H &

Ex.PW8/I respectively. On interrogation, PW18 came to know about

involvement of the second appellant [email protected] Chikna and the fourth

person Nafees, who has not been arrested. Nadeem @ Chikna was

arrested on 17th December, 2009 at 7.30 p.m. vide arrest memo

Ex.PW8/J.

19. Appellant Asif in his disclosure statement marked Ex.PW8/A

had mentioned that they had thrown the papers which were snatched by

them from the deceased Abdullah while robbing him on the other side

of the railway line. On the pointing out of the appellant Asif, they

seized three crushed papers vide seizure memo Ex.PW8/D. The said

documents/papers were marked Ex.PW8/N1 to N3. These documents

consist of registration form in the name of deceased Abdullah, a copy

of the identify card of Abdullah issued by Ananda College and

residence proof of Abdullah. Site plan marked Ex.PW18/I of the place

from where the said recoveries were made was prepared. From

Nadeem @ Chikna, currency note of Rs.100/- with a brownish spot

was recovered and it was stated by the appellant Nadeem @ Chikna

that this was a part of the looted property. The said currency note was

seized vide seizure memo Ex.PW8/E. The said currency note was

marked Ex.P2 and while recording statement of Inspector Narender

Singh Minhas (PW-18) on 11th February, 2011, it was observed that

there was a brown spot on the currency note. As per the CFSL report

marked Ex.PW18/PX, human blood was detected on the said currency

note, but blood group could not be ascertained as there was no

reaction.

20. Head Constable Subhash Chand (PW-8) has deposed in respect

of the recoveries of the three papers marked Ex.PW8/N1 to N3 and

Rs.100/- currency note Ex.P2. He has stated that the documents

Ex.PW8/N1 to N3 were recovered at the instance of Asif at about 7

p.m. and the currency note of Rs.100/- was recovered from Nadeem @

Chikna.

21. PW-18, Narender Singh Minhas has also deposed that a

knife/dagger was recovered from the possession of Nadeem @ Chikna

and taken into possession vide seizure memo Ex.PW8/G. However, as

per the CFSL report Ex.PW18/PX, no blood could be detected on the

said knife/dagger. Hence, the said recovery is neither relevant nor

admissible under Section 27 of the Evidence Act.

22. During the course of hearing before us, our attention was drawn

to the statements of the two appellants recorded under Section 313

Cr.P.C. Appellant Asif has stated that the police had taken away his

brother on 16th December, 2009 and he had surrendered in the police

station on the same day. He has also stated that he did not know the

co-accused including the appellant Nadeem @ Chikna. In his Section

313 statement, Nadeem @ Chikna has stated that he was working at his

barber shop at Shastri Park when he was apprehended and taken to the

police station and falsely implicated. He had earlier in response to

question No.17 stated that he was lifted by the police from his shop on

13 or 14th December, 2009 and nothing was recovered from him.

23. As noticed, the occurrence had taken place at about 9.45 p.m. on

13th December, 2009 and thus, the question of Nadeem @ Chikna

being lifted on 13th December, 2009 does not appeal to us. However,

learned counsel for the appellants has relied upon depositions of Abdul

Salam (DW-2), Liyakat Ali (DW-3), SI Vinay Kumar (DW-4) and

Akila (DW-5).Abdul Salam (DW-2) has stated that he was living in the

same premises where Nadeem and his family used to reside as a tenant.

Nadeem had a barber shop in the same premises and on 13th or 14th

December, 2009 at about 12 noon/1 p.m., 4-5 police officers including

a Sardar had apprehended Nadeem. 10-12 persons had gathered there

and they had questioned the police as to why Nadeem was being

harassed. Mother of Nadeem had made a call at 100 number and PCR

vehicle had come to the spot. Policemen from police station

Seelampur had come and told them that they should go to police

station Gandhi Nagar. DW-2 had requested the police to release

Nadeem, but was told that Nadeem would be released in the evening.

After 3-4 days, he came to know that Nadeem had been implicated in

the present case. Similar statement has been made by Liyakat Ali

(DW-3) who claimed that he used to go to the shop of Nadeem @

Chikna for hair cut. Akila (DW-5) is the mother of Nadeem @ Chikna

and has stated that on 14th December, 2009, Nadeem was working in

his shop when he was taken by the police and she had called the police

at number 100. PCR vehicle reached her residence and inquired about

the occurrence. On the same day, she went to police station

Seelampur, but could not get any information and in the evening, she

came to know that her son Nadeem was in the police station Gandhi

Nagar. On 15thDecember, 2009, she received a call from SI Vinay

Kumar and went to the police station Seelampur, but was again told

that her son was in custody of police station Gandhi Nagar. She

claimed that on 14th December, 2009, 3-4 police officers had come in

the PCR van, but she had not seen the said persons.

24. SI Vinay Kumar (DW-4) on 14th December, 2009, was posted at

police station Seelampur and was assigned DD No.10A and thereupon

had reached D-356, Shastri Park, Delhi, where Akila met him and had

stated that her son Nadeem, who was working in the barber shop was

taken by two persons, who appeared to be policemen. The call

remained pending for a day for inquiry. On 15th December, 2009, DW-

4 again visited the house of Akila, who told him that she had gone to

the police station Gandhi Nagar, where she came to know that that her

son was in custody. DW-4 had recorded her statement marked

Ex.DW4/A. Subsequently, he inquired and came to know that Nadeem

had been arrested in FIR No.306/2009, police station Gandhi Nagar

and this was recorded in DD No.48B on 21st December, 2009 marked

Ex.DW4/C. In the cross-examination by Additional Public Prosecutor,

DW-4 has stated that he had not verified from police station Gandhi

Nagar about apprehension of Nadeem either on telephone or personally

and in DD No.48B marked Ex.DW4/C, Nadeem‟s date of arrest in FIR

No.306/2009 has not been mentioned. DW-4 again stated that on 14th

December, 2009, he did not verify whether Nadeem had been taken by

the police officers of police station Gandhi Nagar.

25. The aforesaid depositions do give rise to suspicion and a

possibility that Nadeem was taken away and detained on 14 th

December, 2009 in connection with the present case suspecting his

involvement, and his arrest has been post timed and shown as made on

17th December, 2009 at 7.50 p.m. The trial court in the impugned

judgment has recorded a possibility that Akila (DW-5) might have

acted out of precaution and to create evidence, once she came to know

that her son Nadeem might be involved. The aforesaid finding of the

trial court may not be correct and the manner in which DW-4

conducted the proceedings after DD No.10A (Ex.DW4/B) was marked

to him creates doubt and dents the said observation. Certainly DW-4

did not act as was required and mandated by law. This possibly

indicates that he was aware that Nadeem @ Chikna had been detained

in the present case for interrogation by officers of police station Gandhi

Nagar.

26. Constitution mandates that a person upon arrest should be

produced before a Magistrate/Court within 24 hours. The Supreme Court

in the case of D.K. Basu Vs. State of Bengal (1997) 1 SCC 416 has

issued directions as the aforesaid constitutional obligation and protection

was not being adhered to.

27. However, it would not be correct and appropriate to acquit the

two appellants for failure to adhere to the limit prescribed in Article 22

and follow the requirements of Sections 52 and 57 of the Cr.P.C. This

violation would result in procedural irregularity and would not make

the arrest and the prosecution‟s story in the present case null and

void. Strict compliance of statutory provisions should be there but

that by itself does not render the acts done by the police officer void

ab initio and at the most it may affect the probative value of the

evidence regarding arrest or search and in some cases it may

invalidate such arrest or search. But such violation by itself does not

invalidate the trial or the conviction if otherwise there is sufficient

material. [See H.N. Rishbud and Inder Singh Vs. The State of

Delhi, AIR1955SC 196, Manubhai Ratilal Patel Tr. Ushaben Vs.

State of Gujarat and Ors., AIR 2013 SC 313, Sadhwi Pragyna

Singh Thakur Vs. State of Maharashtra, 2011 (10) SCALE 77,

Ashok Tshering Bhutia Vs. State of Sikkim, AIR 2011 SC 1363,

State of M.P. Vs Ramesh C. Sharma, (2005)12SCC628, and State

of Punjab Vs. Balbir Singh, AIR 1994 SC 1872 and State Through

Reference Vs. Ram Singh & Ors. And Pawan Kumar Gupta Vs

State, (Death Sentence Reference No. 6/2013 and CRL. APP. No.

1398/2013 Decided On: 13.03.2014)].

28. In view of the aforesaid discussion, we do not find any merit

in the present appeals and we uphold the conviction and sentence of

the appellants. The appeals are dismissed.

-sd-

(SANJIV KHANNA) JUDGE

-sd-

(G.P. MITTAL) JUDGE

MAY 28, 2014 NA/VKR